Mueller is set to grill a key White House player as he examines whether Trump obstructed justice

Special counsel Robert Mueller is getting ready to
interview White House counsel Don McGahn.

McGahn could provide valuable insight into several
prongs of Mueller's probe.

Topics likely to come up are Donald Trump Jr.'s meeting
with Russians at Trump Tower, former national security adviser
Michael Flynn, and President Donald Trump's firing of former
FBI Director James Comey.

Special counsel Robert Mueller will interview White House counsel
Don McGahn in the coming weeks as Mueller continues to
investigate what President Donald Trump was thinking when he
fired James Comey as FBI director and helped craft a
misleading statement about his son's meeting with Russians last
year at Trump Tower.

If McGahn told Trump that firing Comey for the reasons
outlined in his original letter — the president reportedly cited
Comey's refusal to announce publicly that he was not under FBI
investigation — were illegal, and Trump fired Comey anyway, "that
would be slam dunk evidence of a corrupt intent," said
former federal prosecutor Renato Mariotti.

In that sense, McGahn could have backed himself into a
corner: He tried to protect the president from firing Comey
for a potentially illegal reason, but the fact that he thought
the letter could put Trump in legal jeopardy means he will
have to testify before Mueller's grand jury.

Once there, it is likely that his conversations with
Trump would not be protected by attorney-client privilege,
experts say. (A federal appeals court ruled in 1998, at the
height of the Monica Lewinsky scandal involving President Bill
Clinton, that there was no attorney-client privilege between a
government lawyer and a government employee as it related to a
grand-jury inquiry.)

Trump's lawyer, Ty Cobb, disagreed with the
characterization of the president's letter as incriminating and
called reporting to that effect "exaggerated and/or
fictionalized."

"The 'letter' contained detailed views which the President
presented for comments from senior staff, was the President's
creation, is wholly exonerating and has been with the [Special
Counsel] for sometime," Cobb wrote in an email. "Its existence
was long known to them and to the Department of Justice which has
had a copy since the day it was first discussed within the White
House."

Cobb said there "was was broad support and
little IF ANY objection within the White House for the action in
question which was precipitated by and immediately on the heels
of Director Comey's Congressional testimony" in early May. He did
not respond to follow-up questions about why, if the letter was
not incriminating, it was never sent to Comey.

McGahn and the meetings with Sally Yates about Michael
Flynn

Sally YatesAP

It is likely McGahn will also be asked about the "two in-person
meetings" and phone call he had in January with former acting
Attorney General Sally Yates about Michael Flynn, the former
national security adviser. Flynn was forced to resign amid
revelations that he had spoken to former Russian ambassador
Sergei Kislyak several times during the presidential transition
period.

"We told them how we had this information, how we had acquired
it, and how we knew it was untrue," Yates said.

She continued: "We told them that the conduct Flynn had engaged
in [speaking to Kislyak] was problematic in and of itself. We
said that the vice president was entitled to know that the
information he was giving the American people was not true. And
we told him we were concerned that the American people had been
misled about what General Flynn had done, and that we weren't the
only ones who knew about this."

McGahn then asked her why the DOJ cared if "one White House
official lied to another," Yates said.

She said the Russians "also knew what Flynn had
done, and that he had misled the vice president and
others."

"This was a problem, because the Russians likely had proof
of this information, which created a situation where he could be
blackmailed by the Russians," she told the committee. "We told
them we were giving them this information so they could take
action. McGahn asked me if Flynn should be fired. I said that
wasn't my call."

He also wanted to know if the Department of Justice was
pursuing a criminal case against Flynn, and expressed concern
that firing Flynn could "interfere with the FBI taking action
against" him, according to Yates. She also said McGahn asked to
see the DOJ's evidence of Flynn's conversations with
Kislyak.

Comey testified in June that Trump had asked him shortly
after Flynn resigned whether the FBI would consider
"letting him go." Trump abruptly fired Comey three
months later.

"McGahn will be a fact witness to what Trump was saying at
the time" with regard to Comey's dismissal,Andy Wright, a former
associate counsel to President Barack Obama who is now a
professor at Savannah Law School, said in an earlier
interview.

He "can tell Mueller what concerns he raised with
President Trump, which will further shed light on Trump's state
of mind," Wright said.

Trump Tower and the Russians

U.S.
President-elect Donald Trump speaks with his son Donald Trump Jr.
during a news conference in the lobby of Trump Tower in
Manhattan, New York City, U.S., January 11,
2017.REUTERS/Lucas
Jackson

To charge someone with obstructing justice, prosecutors have to
prove that "the defendant corruptly endeavored to influence,
obstruct, or impede" an investigation, according to legal and
national-security expertswriting for
Lawfare.

That element "is the hardest to prove, because it depends on
showing an improper motive," the experts said.

Insight into Trump's state of mind when he fired Comey and
crafted the statement will be crucial as Mueller examines whether
the president willingly tried to impede the Russia investigation.

The initial statement issued by Trump Jr. about his meeting
with Russians at Trump Tower last year did not mention
that he had been offered incriminating information on
Hillary Clinton in exchange for taking the meeting, or that more
than one Russian attended. Mueller's interest in the statement
has been
growing as he investigates whether Trump tried to cover
up any interactions he or his associates had with Russians last
year.

Trump's lawyers have argued that Comey is an unreliable witness
and that Trump has the power to fire whomever he wants. But the
White House has not fully explained why
Trumpreportedly
overruledhis advisers' warnings to be as
transparent as possible about the Trump Tower meeting — or why
one of his personal lawyers, Jay Sekulow, told CNN in the days
after the meeting became public that
Trumpdid
not play any role in crafting his son's initial statement.

Here, too, McGahn likely has insight into Trump's state of mind
around the time that he drafted the statement, making him a
crucial witness as Mueller attempts to put pieces together.

"As to the narrower legal question of obstruction of justice, the
president's mental state would critical," Wright said. "Did he
participate in crafting a cover story to hoodwink the American
people or did he have congressional and criminal investigators in
mind?"

It is unclear whether Trump consulted McGahn before drafting the
statement about the Trump Tower meeting. But if McGahn was
called, then he was in a position to hear Trump's thinking "and
to shape that thinking" through his legal advice, Wright said.

If he wasn't consulted, that would likely signal to Mueller
"either that Trump was profoundly unaware of the nature of his
deteriorating legal environment or that he was avoiding legal
advice because he did not want to be told to stand down," Wright
said.